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August 14, 1985


The opinion of the court was delivered by: Getzendanner, District Judge:


This civil rights action was brought by Theresa and John Kolpak, administrators of the estate of their son, John Kolpak. The case is now before the court on the motion for summary judgment of nine of the eleven named defendants. (An order of default was entered on March 8, 1983 against defendant Larry Sims. Fed.R.Civ.P. 55(a). Defendant Jesse Johnson has not yet been served and is not a party to the present motion.) The motion is granted in part and denied in part.


In the first count of their three-count amended complaint, plaintiffs claim that the treatment their son received while in defendants' custody deprived him of his rights under the first, fourth, fifth, and fourteenth amendments of the federal constitution. As a result, plaintiffs allege that defendants violated 42 U.S.C. § 1983, 1985, and 1986. In the second and third counts, plaintiffs allege that this treatment violated their son's rights under Illinois statutory and common law principles. As administrators of John Kolpak's estate, they seek declaratory relief, compensatory damages of seven million dollars, and attorney's fees and costs.

The events leading up to John Kolpak's tragic death and the filing of the present action began when he was admitted to the Waukegan Developmental Center ("WDC") in Waukegan, Illinois. The WDC, run by the Illinois Department of Mental Health and Developmental Disabilities ("IDMHDD"), is a state institution equipped to provide care for severely mentally retarded adults. Built in 1975, the WDC consists of five Units, a main administration building, and a schoolhouse arranged around a circular grass field. Each Unit consists of ten Homes, each containing a kitchen, two bathrooms, living and dining areas, a day room off the kitchen, an outdoor patio, a utility room, and four bedrooms. From six to nine persons reside in a Home.

On March 31, 1981, John was admitted to Unit 1, Home 9 of the WDC, where he shared a bedroom with two other residents. By July 18, 1981, after numerous, less serious reported injuries, John Kolpak had died of a severe beating sustained while in the custody of IDMHDD employees. Plaintiffs filed this action on July 29, 1982 against various named and unnamed employees and agents of the IDMHDD. All of the defendants are sued both in their individual and official capacities.

Factual Discussion

A. General Background

The parties do not dispute the events leading up to John's institutionalization. John was born in Chicago, Illinois on October 26, 1953. At the age of seven years, he was diagnosed as severely retarded. Also at that age, as a result of disease and other physical disorders, John lost the ability to speak a recognizable language. John was thereafter characterized as "nonverbal," which means he could understand and respond to verbal instructions in English and Polish, but could communicate his needs only through sounds and hand and body movements. Because of John's disabilities, he was denied admission to the Chicago Public Schools, and attended special schools between ages 12 and 25.

At the age of 25, John underwent testing directed to determining a suitable living situation for him. Theresa and John Kolpak, entering their mid-fifties, were concerned about their future ability to care for their son and sought an appropriate residential facility. After testing was concluded on March 30, 1981, plaintiffs concluded that the WDC was a readily available, suitable institution for John. Neither party asserts that John himself knowingly or voluntarily chose to enter WDC. On March 31, 1981, John was transported to the WDC by ambulance. He was assigned to Unit 1, Home 9, which was characterized by defendant James McKinley as a home for "problem residents." Several defendants admit that John did not pose disciplinary problems. (Amended Answer ¶ 17.)

John's treatment while at the WDC is the subject of this action. The present factual record of the course and professional adequacy of that treatment is spotty at best. Thus, it is important to keep in mind the procedural posture of the case. As defendants have moved for summary judgment, they have the burden of showing that there is an absence of any genuine issue of material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). This is so even though plaintiffs will eventually have the burden at trial of showing their entitlement to relief by a preponderance of the evidence.

In scrutinizing a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-movant. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir. 1984); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984). In addition, a movant may not simply question the factual accuracy of the non-movant's pleadings. If the movant does not adduce evidence tending to controvert those pleadings and to establish entitlement to judgment as a matter of law, the non-movant is not obligated to produce evidence in order to defeat the motion for summary judgment. Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985). These principles concerning the burden of proof are especially important in a case such as this where the factual record is replete with omissions relevant to crucial elements of defendants' arguments. See, e.g., Adickes, 398 U.S. at 157-158, 90 S.Ct. at 1608-1609.

B. Defendants' Duties at WDC

The parties have provided the court with portions of several defendants' deposition testimony. That evidence and the pleadings illuminate the roles and responsibilities of the defendants. At the relevant times, defendant Richard Bell was a Service Area Coordinator of the IDMHDD. In this position, Bell supervised the Unit Administrators of Units 1 and 2 of the WDC. (Bell Dep. at 10-11.) It appears from Bell's deposition that his supervisory responsibilities did not include direct review of every event occurring in the various Homes. Rather, Bell would have regular sessions with the Unit Administrators. (Id. at 28.) In addition, Program Coordinators and Home Managers would occasionally meet with Bell. (Id. at 10-11, 28.) Reports from the Unit Administrators would include any indication "of any problems or major difficulties." (Id. at 11.) Bell explains, "I would get general reports about how programs were functioning but not in detail unless there was a problem, and then I would get significant detail." (Id. at 27-28.) In addition to holding direct meetings with subordinates, Bell would review Home records as part of his supervisory tasks. Such records include so-called Special Injury Reports and Special Incident Reports. (Id. at 62.) (The court will refer to these reports simply as injury reports and incident reports. A description of the reports will be provided below.) According to Bell, after such a report had been completed, "[e]ither I would review them or my administrative assistant would review them and bring those to my attention that he felt were even vaguely questionable." (Id.)

Defendant Robert Day was the Unit Administrator for Unit 1 at the times relevant to the complaint. Day testified that his responsibilities included protection of the health and safety of from 80 to 120 mentally retarded adults and the supervision of from 120 to 126 employees. (Day Dep. at 6.) Bell testified that Unit Administrators supervised Home Managers (Bell Dep. at 10-11), and this is consistent with Day's description of his duties (Day Dep. at 51). Day indicated that he reviewed injury reports as a matter of course. (Id. at 50.) It is also clear that he reviewed incident reports (which were kept in the Home for the Home Manager's use), talking to the Home Manager about a specific report "[i]f it require[d] it." (Id. at 51.) Finally, Day could and likely did make specific decisions about Home routines. For example, Home Manager Larry Hudson testified that Day probably was responsible for the decision to do extra "body checks" on John as a way of locating the source of his injuries. (Hudson Dep. at 30.)

Defendant Larry Hudson was the Home Manager for Unit 1, Home 9 while John resided there. (Hudson Dep. 28-29.) Hudson's deposition reveals that his duties included supervision of the technicians. (Id. at 54-55, 60-61.) It is also clear that, perhaps unlike Day and Bell, Hudson's job brought him in frequent contact with the Home residents, since Hudson often made entries in the Home logs and observed John in person. (See, e.g., id. at 40, 42.) Thus, Hudson's supervision of the daily Home activities was close. When asked whether he read the special chart directed to determining the source of Kolpak's injuries, Hudson said he probably did, noting, "I wanted to be aware of everything that was happening." (Id. at 38.)

Defendant John Miller was a Program Coordinator during the relevant period. Plaintiffs provide no other description of his duties. Miller states that he served primarily as Home Manager for Home 7, and was Program Coordinator for Unit 1, Home 9 on July 18, 1981 solely because of the rotating weekend schedule for Program Coordinators. Miller stated that as Program Coordinator, he does not come into contact with residents' records. Defendant Arnold Wolochak was a Social Worker for John's Home. His tasks included pre-admission counseling and counseling of verbal residents. (Wolochak Dep. at 5-7.) Thus, he did not counsel John, since John was nonverbal. (Id. at 5.) It is also clear that Wolochak's duties did not include supervision of residents at the WDC.

C. John's Stay at WDC

Plaintiffs claim that each of these defendants is responsible for John's death in one or more ways. Specifically, plaintiffs claim that some defendants' care for John was grossly negligent. For example, according to plaintiffs, Canty's emergency medical care or the technicians' completion of special injury or special incident reports was professionally inadequate. Additionally, plaintiffs allege that defendants recklessly ignored the series of injuries sustained by John before the night of his fatal beating by failing to document the injuries and failing to take minimally adequate protective measures. Finally, plaintiffs claim that defendants conspired to conceal evidence of their recklessness.

To assess the accuracy of these allegations, the court must review the history of John's short stay at the WDC. These facts are elicited primarily in Larry Hudson's deposition. In that deposition, Hudson is questioned on the various reports documenting noteworthy events in John's life. These reports include the special injury and incident reports mentioned above, as well as the house and medical logs.

Special incident reports were used to document every unusual occurrence, including injuries, while special injury reports were for documenting all injuries. An injury should be noted in both incident and injury reports. (Day Dep. at 49.) Normally, a technician or nurse would complete these reports, since they were most frequently on hand to make the observation. (Bell Dep. at 62.) The exact circulation of the reports is unclear. Injury reports appear to have been given to the Unit nurse for review, then to the Unit Administrator, then to "medical services," and finally to the "facility director." (Day Dep. at 50.) Bell also reviewed these reports. (Bell. Dep. at 62.) Incident, but not injury, reports were retained in the Home for the use of the Home Manager. (Day Dep. at 51.) (Of course, as mentioned above, incident reports should duplicate the information contained in the injury reports.) The house log was a journal kept in the Home in which employees would note all unusual incidents and special instructions. The medical log was also kept in the Home, and contained notes of medical treatment. (Hudson Dep. at 32.)

In his deposition, Hudson refers frequently to these documents. Sometimes it is unclear to which document he is referring, since the court has not been provided with the deposition exhibits or the logs and reports. However, Hudson's testimony does provide a useful chronology of John's three and one-half months at the WDC.

John's first documented injury is found in the medical log in an entry dated April 14, 1981. (Hudson Dep. at 32-33.) That entry, by Hahn, indicates that when the first shift came on duty that morning, John was found with a bloody lip, but no apparent bruises or cuts. The next entry in the same log, signed by mental health technician Linda Chatman, reveals that on April 17, 1981, an x-ray of John's right hand was taken. (Id. at 33.)

No other details on this incident were contained in the medical log, although details are provided in a document referred to as "Canty Group Exhibit 2." This document, which remains unidentified, contains this notation for April 17, 1981:

  Drowsy and staggering. Noted right hand swollen
  and infected abrasion on upper surface. Dr.
  Goldman notified 2:15 p.m. Ordered x-ray. Mary

(Id. at 34.) After that entry is another indicating that John's parents had visited him at 2:00 and noticed his swollen right hand. In this same log is an entry that Theresa Kolpak visited John on April 22, 1981. (Id. at 35.) On April 23, Larry Hudson made the following entry:

  Mrs. Kolpak called me today and expressed concern
  about the swelling and bruising on John's hands,
  arm, lip and stomach. I informed her that a
  report would be made. A report will be made and
  she will be kept informed of any future

(Id. at 36.) Hudson could not remember if he did contact the nurse, but testified that is what he usually would have done. (Id. at 36-37.)

On April 26, 1981, an Arthur Thompson noted in Canty Group Exhibit 2 that, "John's body check was made. I found the same marks as yesterday. A report made." (Id. at 37.) There is no indication as to whether these "marks" had any relation to the injuries noted on April 14, 17, or 22.

A May 4, 1981 entry in Canty Group Exhibit 2 indicates that, "At 9:45 Mrs. Kolpak came to visit John, and John had to be taken to the hospital. John was taken to St. Therese Hospital for x-rays for his left hand. There was slight swelling." (Id. at 38-39.) Later that day, another entry reveals that, "John was taken to his room to sleep and the staff took his shoes and socks off. It was then noticed that John's feet, toes and ankles were bruised and swollen. Nurse was notified." (John was taken to see a doctor for these injuries on May 5, 1981.) Further below this entry is another entry made at 2:30 p.m.:

  Effective today and until further notice John
  will be on a one-on-one staff observation
  assignment during his waking hours. Also
  effective today third shift will be making
  nightly body checks at the beginning and end of
  their shift along with the first and second

(Id. at 39-40.)

A May 5 entry indicated that John had been taken to see a doctor, according to Hudson for the injuries observed on May 4. (Id. at 41.) Also on May 5 is a note that Theresa Kolpak called asking about the results of John's x-rays "yesterday." Hudson was unable to remember what those x-rays were for. (Id.) On May 8, 1981, according to Canty Group Exhibit 2, John saw a doctor for bruises and swelling in both ankles. (Id. at 42-43.)

Apparently John also suffered from blood in his urine at some point. Hudson remembers that problem and that John made frequent trips to the urology clinic. (Id. at 48.) Canty testified that on July 14, 1981, John flinched when touched in the kidney area. (Canty Dep. at 78.) She stated, "I just knew he had kidney complications." It should be noted that the July 19, 1981 autopsy report of the Lake County Coronor's Office confirms that John sustained multiple fractures with internal injuries and hemorrhage to the left kidney, with blood in the urine. (Amended Complaint ¶ 30; Defendants' Answer to Amended Complaint, filed 6/20/84, ¶ 30.)

Not counting the incidents of blood in the urine, the logs discussed in Hudson's deposition may document as many as eight injuries from March 31 through May 8, 1981. This number may in fact have been higher, since the evidence suggests that the staff was either not noticing or not reporting evidence of all injuries. For example, in two cases, injuries were reported only after John's mother brought them to the staff's attention. In addition, Hudson testified, when asked about omissions in the medical log, that "a lot of the staff there at the facility just don't know the correct way of documenting information like that." (Hudson Dep. at 35.) When asked about the recording of orders in the appropriate logs, Hudson further testified that not all orders are recorded; "things like that happen quite often." Because the court has no evidence on the cause of blood in John's urine before July 18, 1981, it cannot determine that this was further evidence of abuse.

John's last injury allegedly occurred sometime between the evening of July 17 and the morning of July 18, 1981. (Amended Complaint ¶ 30.) Defendants contend that defendant Larry Sims (against whom a default has been entered) was responsible for the fatal beating. (Defendants' Memorandum in Support, filed 7/1/84, at 12.) Jay G., a friend of John's and a Home 9 resident, testified that he saw Sims beat John. (Jay G. Dep. at 5-6, 9.) Defendants, in their answer, admit that the coroner's report indicates external trauma to have been the cause of John's death. All of the defendants who have answered have denied beating John.

Because the evidence supports defendants' theory that Sims beat John sometime during the third shift between July 17 and 18, 1981, the court must determine whether the moving defendants had any indirect responsibility for John's death. The court has already described generally the duties that defendants owed John by virtue of their employment with IDMHDD. In addition, several defendants were questioned specifically on their personal knowledge of John's stay at WDC.

Service Area Coordinator Bell was questioned in his deposition about the predictability of the fatal attack:

  A. There was nothing in those reports that would
  have prevented or indicated that such a savage
  attack was going to take place on him.
  Q. Perhaps not a savage attack, but was there
  anything that might have indicated that there was
  a pattern of abuse emerging?
  A. I could not see a pattern of abuse. There was
  really no pattern to the incidents.

(Bell Dep. at 109.) There is no evidence of whether Bell properly exercised his supervisory duties with regard to John; such duties included the review of the special injury and incident reports, as well as the receipt of "significant detail" regarding any "problems." Rather, the court is told only that from the reports, Bell could not detect a pattern of abuse.

Administrator Day probably had some responsibility for ordering special "body checks" on John. A full body check occurs when a staff member views the entirely unclothed body of a resident. (Hudson Dep. at 21.) According to Hudson, a full body check is done every day at every shift change and whenever a resident goes on an outing. (Id. at 20-21.) Hudson provided the following description of the procedures for carrying out body checks:

  Q. So at the beginning and end of each shift all
  the students are undressed completely?

A. Yes.

Q. And they are in their rooms?

A. In the privacy of their own rooms.

Q. And that goes on every day?

A. Every day.

  Q. And the incoming staff would do a body check
  with the ...

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